Moshi D/O Ndege vs Jeremia Musamba (Matrimonial Civil Appeal No. 15 of 1981) [1982] TZHC 91 (28 October 1982)

IN THE HIGH COURT OF T.\NZ.,l.JIA AT MUSOMA (1: C) MATR. CIVIL AI:IEAL NO. 15 OF 1981 (From the Decision of the lr. Court of Bukwaya at Musoma in Civil Case No.76/76 MOSHI D/0 NDEGE • • • • • • • • • • • • • • • • AH ELLANT versus JEREMIA MUSAMBA e•ooo•••••••••,•• RESlONDENT JUDGMENT CHUil., J: . In Civil Case No. 76/76 of Bukwaya 1:rimary Court Moshi Ndege filed a i,etition of divorce. The record of the court does not reveal the grounds for the 1etition nor does it show whether the matter had been referred to a Concilliatory Board as required Under Section .101 of the Marriage Act. )11 the file shows is an order of the Magistrate which reads:- "Kutokana na barua ya Mwenyekiti wa T.ANU wa Mkoa mdai ameelezwa kwamba: aI,ate mahari ndiI,,o aweze kufewa talaka. II With ·due resfect the order has no legal backing and would a1'1ear to reflect that the trial magistrate has a habit of deciding cases by follmwing suggestions in letters written to him without checking whether those sugge-- st icins are in accordance with law. The ttention of the trial magistrate is·dr;wn·to the f,rovisions of Section 41(a) of the Marriage Ac which sti1,,ulates:- "A marriage which in all other resi,ects corni,1ies with the ex1ress requirements of this Act shall be valid for all 1ur1oses, notwithstanding (A) any non-coml-liance with any custom relating to dowry or the giving or exchanging of gifts before or after marr:iage." It follows as night follows day that in order to invalidate a marriage it is not necessary "that dowry should first be returned. In i,ractice it may be desirable in exce1tional circumstances to have the dowry returned first before divorce is granted but that does not make it legal requirement. Indeed dowry is usually returned after divorce and it is returned by the one who received it or his legal reI,,resentatives. Since the record does not show whether or not the I,etitioner had re- ferred the case to a Concilliatory Board before going to court she is now ordered to do so before she can file a i,etition in court. The order of the trial court is hereby quashed and if a 1etition is eventually filed in the same court it should be heard by a different magistrate. -. "If-~ :t .Right"ofAiieal exI,,lained. ' ·/ I ' I 'MUSOMA ·28th_06tober~ 19~2: Sgd. L. J. R. CHUA JUDGE 28/10/1982